JUDGMENT
S.U. Kamdar, J.
1. The present two appeals are filed against the common judgment delivered by the learned Single Judge dated 2-9-1994 in Suit No. 422 of 1973 by which the learned Judge has partly decreed the suit by holding that the plaintiff and other villagers of Koliwada Village have all the rights and privileges in respect of Waras Land in terms of the resolution of 1933 of the Bombay Improvement Trust Committee. Some of the relevant facts arising in the present case, briefly stated, are as under:–
2. The suit was filed by four of the villagers in their representative capacity claiming right in respect of the area of about 103650 sq. yards equivalent to 83000 sq. mts. The villagers are carrying on business of fishing. They are permanent tenants of their holdings in that village subject to payment of Appeal Nos. 917 of 1995 and 481 of 1996 in Suit No. 422 of 1973 decided on 21-4-2004. (O.O.C.J., Bombay)
Fazandhari rent to the Fazandhars. The Waras land which is the subject-matter of the present appeals is appurtenant to the village land and is meant for beneficial enjoyment of the activities associated with fishing on the said land. The basic use to which the said land is put to is drying their fishing nets, grazing their cattle and for their fishing trade purposes. This user of the said land is from time immemorial. The said rights have been used and in existence in favour of the villagers even before the present appellant was constituted and/or their predecessor in title.
3. Sometime in 1919, the Bombay Improvement Trust Committee framed a scheme for improvement of the Worli Village and for achieving the said object acquisition proceedings were commenced to in respect of the suit land being Waras land. In respect of the said land which was acquired, compensation was awarded in the sum of Rs. 3,33,502/- to be paid to the Fazandhars and the villagers. Half of the said amount was paid to Fazandhars. Remaining half payment was to be made to the villagers. It seems that there were subsequent negotiations between the villagers and the Improvement Committee and the Improvement Trust and sometime on or about 5-4-1933 a compromise was arrived at by and between the parties. The present appellant being the Bombay Municipal Corporation are the successor in title of the said Bombay Improvement Trust. Prior to proceeding with the said negotiated settlement between the parties, a note was prepared by the Chief Officer, inter alia, recommending the acceptance of the compromise by the Committee. The said terms are relevant for the purpose of the present appeal and briefly stated are as under:–
The Board’s Worli Scheme No. 52 was notified in the year 1919. This Scheme included the area of the Worli Koliwada Village. Along the west side of this village fronting along the seashore, there is an extensive area running from south to north. This area is known as Waras land and is being used by the villagers since the inception of the Koli village in connection with their fishing trade. They dry their fish and the nets all over the land.
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6. On coming to know about this denotification, a number of villagers addressed a letter to me in June, 1931 stating that, as most of the properties in the village had been denotified, they were not willing to receive their share of compensation of Waras land payable to them by the Land Acquisition Officer but were willing to get back their rights over the Waras land. They therefore suggested that the Trust should receive back the amounts awarded or to be awarded for the Waras land compensation to the villagers and restore the status quo and recognise their rights over the Waras land as before.
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14. The arrangement proposed above is advantageous to the Trust as at present all the people in Worli–Koliwada are making full use of the Waras land and it would be almost impossible for the Improvement Trust to prevent them from doing so and, in any case, it would be very costly for the Improvement Trust to enforce their proprietary rights. According to the arrangement, the Trust would be relegated to the position of Fazandar and the people in the village would enjoy the same rights as they had enjoyed until the Scheme was notified by the Trust. The amount which still remains to be paid comes to Rs. 1,12,314/- and out of the amount of Rs. 45, 434/- already paid the Trust have recovered or are to recover back Rs. 17,137/- from the owners who have repurchased their properties since the denotification of the remaining cases. The balance therefore to be recovered comes to Rs. 37,300/- and it is likely that some portion of the said amount would also be recovered.”
On the basis of aforesaid recommendation ultimately a final resolution was approved by the Bombay Committee. The said resolution reads as under :
“RESOLUTION No. 6.– “The settlement proposed by the Chief Officer in his note, dated 7th January, 1933, is approved and sanctioned:
2. Those owners of property who return to the Trust the amount received or to be received by them by way of compensation in respect of Waras land and agree to pay the Fazandari rent in respect of Waras land to the Trust shall enjoy the same rights of ownership and user over the Waras land as they have been enjoying before the Waras land was notified for acquisition.
3. Entering into of an Agreement with the villagers be dispensed with in view of the special circumstances. A certified copy of this Resolution along with the Stamped Receipt of the Trust of the amount returned by each villager would operate as his document of title to his share in the Waras land.”
In accordance with the said resolution, the villagers who received compensation from the land acquisition officer were required to repay it to the Improvement Trust Committee. A large number of villagers have accordingly paid back the compensation to the Bombay Improvement Trust in pursuance of the said resolution. The villagers thus continued to use the said Waras land for the purpose for which they were using it prior to acquisition of the said land.
4. After 1933 resolution, the Corporation has stepped into the shoes of Fazandars in respect of the said Waras land on behalf of the villagers and the villagers are the beneficiaries of the said land. In or about 1941 a portion of the land was taken over by the Corporation and was permitted to be occupied by the military and the Municipal Corporation is collecting rent or compensation from the military. Another portion of the land is in fact encroached upon by encroachers and there are large number of hutment dwellers who have erected hutments and are occupying the same. It is the case of the Corporation that these hutment dwellers are paying rent and their occupation has been accepted by the Corporation. Sometime in or about 1973 when the rights of the occupiers and the villagers were threatened by the Corporation by seeking to encroach the portion of the vacant land and seek to alienate the same, the villagers filed the present suit, inter alia, seeking relief that the resolution dated 5-4-1933 be enforced and that the villagers of the said Koliwada village be restored their right which was enjoyed by them prior to the acquisition proceedings in respect of whole and every part of Waras land and that the defendants are not entitled to encroach or alienate or lease the whole or any part of the Waras land. Various other reliefs were also sought on the basis that the villager’s had become owners under the said resolution.
5. The Corporation resisted the suit by filing the written statement, inter alia, contending that the respondents were the owners in respect of the said land under the acquisition.
In para 11 of the written statement the Corporation however has admitted as under:–
“The Defendant say that it is true that there is a piece of Waras land which was in the occupation of Villagers for the purpose of drying their fishing nets and for their fishing trade.”
However, it is further contended that on acquisition of the land, rights in the land had been acquired and the Corporation has become owner in respect of the said land. It is thus contended that the plaintiff villagers have no right whatsoever. It was also contended that once the land is acquired, no right remains in favour of the villagers-plaintiffs. It has been further contended that under the resolution all the villagers have failed to return the compensation already received by them under the Land Acquisition Act and, therefore, the said resolution of 1933 is of no legal effect and no right flows in favour of the villagers in the present case.
6. On the aforesaid averments in the plaint and the written statement, the learned Single Judge has framed issues. Issue Nos. 1, 2, 4 and 11 which are relevant for the purpose of the present appeal are set out hereinunder:–
1) Do Plaintiffs establish that they and the other villagers and residents of Koliwada have been in continuous use and occupation of the suit lands since times immemorial?
2) Do plaintiffs establish that they and the villagers afore-mentioned have become owners of the suit lands?
4) Whether defendants have lost their right over the suit lands by virtue of an agreement as averred in paras 6 and 7 of the plaint?
11) Is plaintiffs claim within limitation?
7. The learned Single Judge while considering the aforesaid issues has given the finding that under the resolution of 1933 the acquisition which was effected by the Bombay Improvement Trust was withdrawn and the status quo ante has been established and the rights of the villagers-plaintiffs towards the said Waras land which is the customary right enjoyed by the villagers or the fishermen is returned back to the villagers. The learned Single Judge has further held that though the plaintiffs-villagers are not the owners in respect of the said land they have customary and/or easementary right to the said land for the purpose of user of the said land for drying fish as fishermen. The learned Single Judge has given a further finding that insofar as the refund of the compensation is concerned, it has been established that 95% of the villagers have repaid the compensation and thus they have acquired a right to use the Waras land on the basis of the 1933 resolution which they were enjoying even prior to the acquisition proceedings. Insofar the land which is handed over to the Military in 1940/41 is concerned, the learned Single Judge has rejected the case of the plaintiffs on the ground that the said claim is barred by law of limitation. Similarly the claim in respect of the land which is encroached by the encroachers has also not been granted by the learned Single Judge on the ground that the said encroachers who are third party are not parties to the present suit. Accordingly, the learned Single Judge has decreed the suit in part.
8. Against the said order and judgment of the learned Single Judge both the plaintiffs as well as the Corporation – original defendant – have filed the present two appeals. Insofar as the appeal of the Corporation is concerned, it is challenging the finding of the learned Single Judge in respect of issue Nos. 1, 2 and 4 and operative relief which has been granted by the learned Single Judge. In support of the argument, the learned counsel appearing for the Corporation has contended that by virtue of the acquisition proceedings, the defendant corporation has become the owner in respect of the said land and a separate grant has been given under the 1933 resolution in favour of the villagers on the condition that they shall repay the compensation and further that they will pay fazandari rent to the Corporation in respect of their individual holdings. It is his case that the first condition not being complied with and admittedly some of the villagers have not repaid compensation, the resolution is ineffective and no right can flow from the said resolution in favour of the villagers and the defendant Corporation continues to remain as owner in pursuance to the said acquisition proceedings initiated by them earlier. Insofar as this contention is concerned, the documents which are brought on record in evidence in respect of which there is no dispute particularly the resolution No. 721 dated 21-2-1933 in terms states that it was agreed by and between the parties that the acquisition proceedings are brought at naught and the original rights enjoyed by the villagers prior to the said acquisition would be restored. It has been further stated in the said resolution that the land which will be restored in respect of the Waras land in favour of the villagers will be with ownership right and that they will be entitled to enjoy the said property. This resolution along with the committee note has been approved by the Bombay Improvement Trust Committee. Once the resolution prescribes that the acquisition which has been earlier effected in respect of the Waras land is brought to naught by conferring the very same rights which were being enjoyed by the villages prior to the acquisition proceedings being initiated, then in that view of the matter, the contention of the learned counsel for the defendant Corporation that the resolution conferred fresh right in favour of the villagers cannot be accepted. Apart therefrom, the resolution which has been passed by the trust in effect describes the rights which would be enjoyed by the villagers and the owners as ownership rights in respect of the said Waras land. Thus, the contention of the learned counsel for the Corporation is in fact contrary to the language and plain reading of the said resolution dated 21-2-1933.
9. It has been thereafter argued by the learned counsel for the Corporation that it is an admitted position that the villagers have not returned the compensation in pursuance of the said resolution passed by the Improvement Trust and once even one of the villagers has not paid compensation, then no right flows in favour of any villagers. However, this contention also is contrary to the language of the said resolution inasmuch as the resolution provides that those owners of the property who returned the amount received or to be received by them by way of compensation to the Trust in respect of Waras land will be entitled to enjoy the said right of ownership and user of the land. The resolution thus prescribes that even if a few of the villagers returned the amount of compensation received by them then they would be entitled to enjoy all rights in respect of the Waras land as owners thereof. Therefore, it is not possible to accept the contention of the learned counsel for the Corporation that till and until all the villagers returned compensation amount as and by way of repayment, no person would be entitled to use or enjoy any right under the said resolution because such interpretation of the resolution would be contrary to the language of the resolution itself. It has been further argued by the learned counsel for the Corporation that the resolution prescribing payment of Fazandari rent in respect of Waras land has not been honoured by the villagers and, therefore, also they are not entitled to the benefit of the said resolution. No such case was either pleaded or proved before the learned Single Judge in trial and, therefore, it is not possible to consider this contention which is an issue of fact and require pleadings and evidence in that behalf.
10. It has been further argued by the learned counsel for the Corporation that once the learned Single Judge has given a finding that there is no creation of a trust by and between the Bombay Improvement Trust and the plaintiff villagers, the suit must necessarily fail. This issue has been considered by the learned Single Judge. The learned Single Judge while considering the nature and character of the rights in favour of the villagers has held that the villagers are enjoying customary right and/or easementary right in respect of the open land for drying fish. The learned Single Judge so held by relying upon the judgment of the Hon’ble High Court of Madras in the case of Abbas v. Andi Chettiar and Ors., in which a somewhat identical situation arose. The Court while recommending the right to the fishermen in respect of open land adjacent to the ocean has held that there is such customary and/or easementary right existing in favour of the villagers for using the land adjacent to the ocean for the purpose of carrying on their business and trade of fishermen. The learned Single Judge of the Madras High Court has relied upon the judgment of the Chancery Division and has held as under :–
“7. A very similar question arose for consideration, as between the grantor and the grantee, in Mellor v. Walmsley, 1905-2 Ch. 164. Delivering the judgment of the Court, Vaughan William L.J. (sic) (Roomer, L.J., ?) stated, quoting from Lord Chief Justice Hale’s treatise, De Jure Maris.
“The shore is that ground that is between the ordinary high water and low water mark. This doth prima facie and of common right belong to the King, both in the shore of the sea, and the shore of the arms of the sea.”
It was held by the Court of appeal that the grantee was entitled to free and unrestricted access to the sea from every part of his western frontage, over every part of the strip of land lying between that frontage and the sea. In the present case, as far as I can judge from the plan and report filed by the Commissioner, the area in dispute is definitely part of the seashore, immediately adjacent to the actual ocean. It ascent clear whether this strip of land is really between the high water mark and the low water mark. There is no evidence on that point. But it is at least doubtful if the plaintiffs would really claim the shore proper, as defined in Mellor v. Walmesley, 1905-2 Ch. 164 cited above, as their property, even if there is a document of title in support. As was pointed out in one context in that very decision, the sea itself is liable both to flow and cover the land, and also to ebb or recede and make the land available for occupation by man.”
In the present case the learned Judge having relied upon the said judgment of the Madras High Court and evidence before him has come to the conclusion that there is such customary right existing in favour of such villagers and in fact recognisation of the said right by the Bombay Improvement Trust by a resolution passed in 1933 has committed no error whatsoever. It is not possible to accept the contention of the learned counsel for the defendant Corporation that merely because the learned Single Judge did not accept the case of the plaintiff-villagers that there is a trust, the learned Judge must necessarily as a consequence dismiss the suit. The learned Single Judge has considered the evidence and material before him and after going through the said material and the evidence before him, has come to the conclusion that such customary and easementary right exists in favour of the villagers and has been recognized by the predecessor in title of the Defendant Corporation i.e. Bombay Improvement Trust Committee and the same is also recognised in law as well.
11. The learned counsel has thereafter argued that once there is a finding by the learned Single Judge that there is no trust created between the Bombay Improvement Committee and the plaintiffs herein and consequently holding that Section 10 of the Limitation Act has no application, it was not open for the learned Single Judge to still hold that in respect of the part of the land which is open and vacant, the suit is within time. It has been further argued that thus the whole suit is barred by law of limitation and no relief could have been granted at all in respect of any part of the land. This contention of the learned counsel for the Corporation proceeds on the footing that there has been a single cause of action. In the present case, there has been invasion and threat to the customary rights of the villagers time and again first when part of the land is taken over and handed over to the military in 1940-41. There has been also some encroachment by hutment dwellers. However, it is not disputed that in 1973 when the suit was filed there was an apprehension or threat to the balance open vacant land and in respect of the protection of the said open and vacant land the suit was filed immediately thereafter. Insofar as this land is concerned, the suit is within time. Merely because the learned Single Judge having held that the suit is barred by law of limitation in respect of other part of the land which was already encroached upon does not in any manner mean that the whole suit should have been rejected by the learned Single Judge. Each time there is a cause of action the villagers were entitled to maintain the suit and therefore the suit filed in respect of open vacant land in 1973 to that extent was within time. In our view, the learned Single Judge has accordingly rightly granted the decree insofar as the vacant land is concerned and has rejected the reliefs insofar as the other land is concerned.
12. In the aforesaid circumstances, we do not find any merit in the present appeal preferred by the Bombay Municipal Corporation and the same is accordingly rejected. Insofar as the appeal preferred by the villagers is concerned, the learned counsel Mr. Kotwal appearing on behalf of the said villagers submits that in light of the dismissal of the appeal of the Bombay Municipal Corporation, he is not desirous of pressing the same and the same is accordingly dismissed as not pressed. There shall be no order as to costs.